U.S. Supreme Court

Supreme Court Rules Temporary Flooding May Be a Taking in 'Baby Step' Win for Property Advocates


The U.S. Supreme has ruled that temporary flooding by the government may result in liability under the takings clause.

The PLF Liberty Blog calls the 8-0 ruling “a major property rights decision” while SCOTUSblog calls it “a good, but not overwhelming, win for property rights advocates.”

The court ruled 8-0 in a suit brought by the Arkansas Game and Fish Commission that claimed thousands of oak trees died when the government temporarily flooded its wildlife area. The U.S. Army Corps of Engineers had authorized the flooding for six consecutive years in a way that benefited farmers while interfering with the wildlife area’s tree-growing season.

Justice Ruth Bader Ginsburg wrote the opinion (PDF) for the court. “We rule today, simply and only, that government induced flooding temporary in duration gains no automatic exemption from takings clause inspection,” Ginsburg wrote.

The government had relied on Sanguinetti v. United States, a 1924 case in which the court ruled against a claimant whose land was damaged when a government canal overflowed in “a flood of unprecedented severity.” Ginsburg said the outcome “rested on settled principles of foreseeability and causation.” Any distinction between permanent and temporary flooding was not material to the result, she said.

Ginsburg noted the government argument that takings liability in the case could disrupt public works dedicated to flood control. But the slippery slope argument is no reason to bar all temporary-flooding takings claims, she wrote. “Today’s modest decision augurs no deluge of takings liability,” she wrote.

She noted several factors that could impact whether a temporary government invasion of land is a taking, including the length of the invasion, the degree to which it was intentional or foreseeable, the character of the land at issue and the property owner’s expectations regarding its use.

Tom Goldstein of SCOTUSblog writes that the court has taken “a baby step in holding that this kind of property damage is not categorically exempt from takings analysis. But the government may ultimately win the fight over whether it has to pay compensation for downstream flooding.”

Justice Elena Kagan did not participate in the case, Arkansas Game and Fish Commission v. United States.

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